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“The U.S. Supreme Court Decision … Means the Nation Has Entered a Post-Constitutional Era”
Painting by Anthony Freda: www.AnthonyFreda.com
“We Are No Longer a Nation Ruled By Laws”
Pulitzer prize winning reporter Chris Hedges – along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others – sued the government to join the NDAA’s allowance of the indefinite detention of Americans.
The trial judge in the case asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys.
The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.
The trial judge ruled that the indefinite detention bill was unconstitutional, holding:
This Court rejects the government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.
But the court of appeal overturned that decision, based upon the assumption that limited the NDAA to non-U.S. citizens:
We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.
The court of appeal ignored the fact that the co-sponsors of the indefinite detention law said it does apply to American citizens, and that top legal scholars agree.
Last week, the U.S. Supreme Court declined to hear an appeal of the case, thus blessing and letting stand the indefinite detention law stand unchanged.
The court of appeal’s Orwellian reasoning may sound – at first blush – like it might be a good thing. After all, the court said there’s no indication that the indefinite detention provision will be applied against U.S. citizens.
However, by refusing to strike down the law and insist that any future laws explicitly exempt U.S. citizens, it leaves discretion in the hands of the executive branch.
The effect of the decision will be to allow the U.S. government to kidnap and indefinitely detain U.S. citizens who protest or dissent against the government … and the courts will never hear any legal challenge from the prisoners. The detainee will not get to say:
The courts said the indefinite detention law isn’t written to apply to U.S. citizens, so you have to let me go!
And he won’t get to say:
You’re confusing me with another John Smith, and I can prove it!
After all, prisoners can be held under the indefinite detention bill without trial, without being allowed to present evidence or hearing the evidence against them, without letting the citizen consult with a lawyer, and without even charging the citizen with any crime.
So – if you’re thrown into a hole somewhere – no one will even hear your story.
Chris Hedges noted in November:
If [the indefinite detention law] stands it will mean, as [the trial judge] pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention.
Constitutional attorney John W. Whitehead agrees:
No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.
As does constitutional attorney William Olson:
The personal freedoms of Americans are now in tatters following the refusal of the U.S. Supreme Court to hear an appeal to knock down the National Defense Authorization Act, constitutional and election law attorney William Olson says.
“This is a rather remarkable shredding of the Bill of Rights,”…. he explained that the language of the act is so “loose,” that anybody can be picked up for any reason.
“The president of the United States … [has] this power to detain indefinitely without charges, without trial, without an arrest warrant, without a grand jury, just to be able to hold someone who they think might be a threat of some sort,” Olson said.
***
“How are you going to challenge it when the black SUV rolls away from your house and no one even knows where you’ve been taken?”
If you think they’re crying wolf, just remember that the CIA director relabeled “dissidents” as “terrorists” in 1972 so that he could continue spying on them … and nothing has changed.
Daniel Ellsberg notes that Obama’s claimed power to indefinitely detain people without charges or access to a lawyer or the courts is a power that even King George – the guy we fought the Revolutionary War against – didn’t claim. And former judge and adjunct professor of constitutional law Andrew Napolitano points out that Obama’s claim that he can indefinitely detain prisoners even after they are acquitted of their crimes is a power that even Hitler and Stalin didn’t claim.
Access to justice is already being severely curtailed in America. Even when the prisoner is afforded a trial, it is becoming more and more common for the government to prosecute cases based upon “secret evidence” that they don’t show to the defendant, his lawyer … or sometimes even the judge hearing the case. The government uses “secret evidence” to spy on Americans, prosecute leaking or terrorism charges (even against U.S. soldiers) and even to assassinate people. And see this and this. Secret witnesses are being used in some cases. And sometimes lawyers are not even allowed to read their own briefs. Indeed, even the laws themselves are now starting to be kept secret.
But prisoners under the indefinite detention bill have it much worse: they don’t get any trial or opportunity to talk to a judge, any access to a lawyer … or perhaps any information about what they’re even accused of doing or why they were nabbed in the first place.
Chris Hedges notes today:
The U.S. Supreme Court decision … means the nation has entered a post-constitutional era. It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power—one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed—a poll by OpenCongress.com showed that this provision had a 98 percent disapproval rating—is a cruel joke. And it means that if we do not rapidly build militant [Washington's Blog believes in non-violence] mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty.
“In declining to hear the case Hedges v. Obama and declining to review the NDAA, the Supreme Court has turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America,” said attorney Carl Mayer, who along with Bruce Afran devoted countless unpaid hours to the suit. “This is a major blow to civil liberties. It gives the green light to the military to detain people without trial or counsel in military installations, including secret installations abroad. There is little left of judicial review of presidential action during wartime.”
***
The law went back on the books [after the court of appeal reversed the trial judge's decision]. My lawyers and I surmised that this was because the administration was already using the law to detain U.S. citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia and Yemen…. Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.
***
In refusing to hear our lawsuit the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians.
***
The goals of corporate capitalism are increasingly indistinguishable from the goals of the state. The political and economic systems are subservient to corporate profit. Debate between conventional liberals and conservatives has been replaced by empty political theater and spectacle. Corporations, no matter which politicians are in office, loot the Treasury, escape taxation, push down wages, break unions, dismantle civil society, gut regulation and legal oversight, control information, prosecute endless war and dismantle public institutions and programs that include schools, welfare and Social Security. And elected officials, enriched through our form of legalized corporate bribery, have no intention of halting the process.
The government, by ignoring the rights and needs of ordinary citizens, is jeopardizing its legitimacy. This is dangerous. When a citizenry no longer feels that it can find justice within the organs of power, when it feels that the organs of power are the enemies of freedom and economic advancement, it makes war on those organs. Those of us who are condemned as radicals, idealists and dreamers call for basic reforms that, if enacted, will make peaceful reform possible. But corporate capitalists, now unchecked by state power and dismissive of the popular will, do not see the fires they are igniting. The Supreme Court ruling on our challenge is one more signpost on the road to dystopia.
***
A ruling elite that accrues for itself this kind of total power, history has shown, eventually uses it.
And Tangerine Bolen writes:
The Supreme Court has made it abundantly clear, first via Citizens United, then most recently via McCutcheon v. FTC, that corporations are “persons” whose “free speech” must be protected at all costs – including the cost of democracy – while our rights – the rights of living, breathing people, the fundamental right of due process and our fundamental rights of free speech and association – those no longer matter. They are to be trampled.
Under the war on terror, the United States government has trampled upon the fundamental human rights of people around the world since 9/11. The Bush administration manufactured a false war based on carefully crafted lies, false evidence and sickening manipulation. In the wake of that war, our courts prefer to continue to defer to a disingenuous national security narrative that has arisen out of the lies, paranoia, and incredible lawbreaking of our own government, including kidnapping, torturing, indefinitely imprisoning, and assassinating people with impunity – all of this against both reason and international law.
We are no longer a nation ruled by laws. [She's right.] We are nation ruled by men who have so steeped themselves in a false narrative that at the same time they are exponentially increasing the ranks of terrorists, they are destroying the rule of law itself. [Indeed, we’ve gone from a nation of laws to a nation of powerful men making one-sided laws to protect their own interests … in secret. Government folks are using laws to crush dissent. It’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.] It is madness upon madness – the classic tale of becoming the evil you purport to fight while believing you remain righteous.
We have tried to stand up to this madness: we are outnumbered, outspent, and outgunned – a David intrepidly fighting a Goliath that spans the planet and has the power to shape our “reality” – thus shaping what the courts even see. We have sacrificed greatly to do this – and yet we would do it all again.
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Yep.All of the Committee of 300 and on up! And very royal family left in Europe.
Reset.
@Kina - but that would take brains and guts
You know, that 'land of the free, home of the brave' stuff
We listen to a song about that stuff before spectator sports - but the vast majority of the audience couldn't tell you anything about that anthem.
You American parents out there whose kids don't know what the 4th of July is about or who that war was fought against - - - pick up a freakin' book and start teaching your dumbass kids. (Chips off the ole' block.)
The 'schools' sure won't teach this; their job is to dumb them down.
I believe we have reached the point where there is no fix short of the second coming of Jesus Christ. (Which may happen sooner than anyone believes) There will be no rebellion, insurrection, or Constitutional Convention (already there are enough states but Congress has ignored it) The USA is the new Roman Empire.
already there are enough states but Congress has ignored it
By whose count? Article V forgot to state who the official counter would be. So who has the authority to state whether a vote that is later rescinded still counts toward the 34 total needed. As the article says, a number of states who voted for the Constitutional Convention have since rescinded their vote. If reversing your vote is allowed, then we do not have 34 states calling for the Convention.
I like how Michigan triggered that Article V provision for a constitutional convention, and it will flat out be ignored. It's the sort of thing that simply cannot be allowed to happen.
Hopefully they'll stop beating around the bush and just adopt the constitution of the USSR, circa 1940, already, and be done with it. The waaaaiiittttiiiinnggg is the haaardddeessstt paaarrrtt.
Just called my senior senator (schumer) to ask when the constitutional convention would be held. I'm sure I'll get a response posthaste.
"I like how Michigan triggered that Article V provision for a constitutional convention, and it will flat out be ignored. It's the sort of thing that simply cannot be allowed to happen."
I'm sorry....I haven't been paying attention. Article V has been triggered? What's an Article V ? For that matter.....who's Michigan ? I've never seen her twerk on T.V. Does she have a reality T.V. show ?
Oh by the way.....which one's Pink ?
"on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments"
1 is just shy of the 2/3s needed, but it's a good start.
the con con is a trap
they don't enforce or defend the Constitution now, why do some think they would do so after a con con?
The danger of the con con is that they could eliminate individual liberties that are currently in the Constitution (though these rights do not come from a piece of paper)
The focus needs to be on enforcing the current Constitution
'con con' is an appropriate short hand for this
Don't expect con con to help. If anything these idiots will make things worse. Nothing will save us. There will be a reset. Only after things get much worse.
http://en.wikipedia.org/wiki/List_of_state_applications_for_an_Article_V...
Obama has aided and abetted the muslim brotherhood (a terrorist organizaiton) as well as al queda in lybia and syria with money and arms.... WHEN WILL HE BE DETAINED??? impeach
The founders of the US understood tyranny, and they understood freedom. The citizenry today do not understand freedom; thus they will learn all about tyranny.
Unfortunately, the fools will confuse tyranny with 'security' and they'll continue to think themselves 'free'
It recently came out thanks to information leaked by Edward Snowden that the "black budget" last year was a massive 52 billion dollars. This is the money used in "secret" spy operations, and it is enough to send shivers down the back of those who value privacy and freedom.
The totalitarian society of Oceania described in George Orwell's novel Nineteen Eighty-Four is a warning as to what can happen when power goes unchecked. In Orwell's novel, all citizens of Oceania are monitored by cameras and are fed fabricated news stories by the government. More on this subject in the article below.
http://brucewilds.blogspot.com/2013/09/are-we-creating-orwellian-society...
"We have always been at war with terrorists."
The "War on Terror" never ends, therefore, "war time powers" never do either.
My wife and I cringed when we first saw GW declare the War on Terror.
http://www.youtube.com/watch?v=_CSPbzitPL8
She and I looked at each other and we both said at the same time "The war on terror will never end." God help our grandkids!
1984 and Brave New World were instruction manuals.
And don't leave out "Animal Farm".
And Talking Heads' "Life During Wartime" is the soundtrack.
Thanks George for keeping us up to date on the death of the Republic and The Constitution.
If you don't believe it, YOU HAVE BLINDERS ON!
And where is the U.S. Military?
Apparently bought like CONgress, the Executive, and the Judicial Branch.
They are all TREASONOUS.
the United States government has trampled upon the fundamental human rights ... since
the Alien and Sedition Acts of 1798 and 1799!
Our "beloved" Constitution was pushed through by a MINORITY of the very rich and powerful who saw it as benefiting them economically.
And the 14th Amendment had been in effect only 15 years before the Supremes used it to protect a CORPORATION from being told what they couldn't do. Thass right. And you never heard about that in school, because "History" has been controlled ever since about 1933 when FDR joined the growing warmongering of the oxymoronic "armed peace" and threw in the towel on public works spending as useless in boosting the economy out of the first Great Depression and that's when liberals became "totalitarian liberals" of "globaloney" in the words of Harry E. Barnes, the greatest social scientist of the 20th century who has been completely erased from most everyone's knowledge.
Academic "History" textbooks are just propaganda ever since the very successful lie about WWII being the "Good War." The Council on Foreign Relations and huge foundations like Carnegie, Rockefeller, and Pew have paid "historians" huge amounts of money to write the textbooks used in all our schools and universities. Up to the 1950s you could see it right on the front matter who paid for academic history propaganda books. 9-11 was just a continuation of the SAME OLD STORY. Get a grip and learn some real history by reading Barnes, whose books you can buy in unused condition for pittances, where the book itself costs less than the cost of shipping.
Up to around 1913 when the Fed was created, the U.S. was staunchly libertarian in every respect. The drumbeats of propaganda have changed all that and turned most everyone here into a stupid zombie wholly ignorant of our history.
But there's no money in it for telling the truth. Get too close and they'll turn your Mercedes into a missile while you're driving it.
There's nothing magic about how the "mind control" works. It's basic herd psychology. Very few are immune to its power. One thing I've noticed about the 9-11 hokum is that formerly intellgent people become stupid about about that if they have yound children they feel they need to protect from ugly reality. They probably think it's doing their children good to protect them from the knowledge that they've been born in a country that allowed the true perpetrators of 9-11 to walk free and unafraid. How sad!
Read some Barnes and it will blow your mind! He died in 1968 and I don't know if he said anything about the JFK murder, but it's painfully obvious that 9-11 was just the same old story, but on a huge scale.
Was the 3000 dead of that day the biggest murder ever? I really doubt it! How many died when we allowed Japan to attack Pearl Harbor by telling the Navy commanders there that there was nothing to worry about?
Barnes was smart but then he lost his mind. Vanity can devour smart people the same way conspiracy can devour stupid people. And in the end? They don't even know their minds have been eaten.
Oh come on, you got all that out of the ZH cookie policy.
I'm no fan of corporations, but I fail to see how they are responsible for the fascists on the Supreme Court.
It wasn't the corporations who put them there.
The voters did that. The voters are the ones who put GWB in the WH. They are the ones who gave us Alito and Roberts.
The voters who elected the elder Bush gave us Clarence Thomas.
The voters who elected Ronald Reagan gave us Scalia and Kennedy.
Those five justices have formed a fascist bloc on the Court. They were all put there by Republican Presidents.
And yet... there are still idiots out there who blame this all on liberal courts. Hey, it wasn't the liberals who did this to you.
It was you who did it to yourselves.
And I'll bet you're still proud of yourselves for not voting for Carter and Dukakis and Gore and Kerry.
Those lily-livered liberal losers.
Welcome to the real world, where foolish acts have ugly consequences.
The voters have nothing to say about it and likely never did. The candidates of both parties are picked by the oligarchs and they don't care which one you vote for. They own them all.
And even if Justice Roberts indicated he'd shoot down Obamacare, he probably changed his mind when he opened that envelope laying on his desk and found pictures of his children getting off the school bus. So he called it a "tax" in an attempt to assuage his guilt for supporting such an obviously unconstitutional measure.
This is going to end badly.
T he DeNial is a big river and it runs right throught the middle of the Zero Muppets. They've got their story down pat; and they're sticking to it. It makes no difference who is elected; therefore it's alright that they're too lazy to get off their asses and vote, never mind use their "superior knowledge" to organize political action groups. Romney promised in plain English to cancell Obamacare the day he took office; but the Zero Muppets can bitch all they want about Odumbocare, because their cover story is "it doesn't matter who you elect". John Kennedy was winding down the small contingent of American Military advisers in Vietnam, Johnson gave you the Vietnam War; Al Gore was crazy, god only knows; but he would not have invaded Iraq over a group of Loony Suicide Pilots. But never mind, "it doesn't matter" excuses their irresponsibility, so that's the way it is.
Maybe it was the voters who put them there, but who is now pulling their strings? It would not surprise me at all if the NSA has collected enough dirt on the majority of the justices and when the administration needs a vote to go its way (Obamacare), they are gently reminded of what the consequences will be for voting their conscience.
I do not blame the voters for the SCOTUS appointments, but I do blame the voters for re-electing the same bunch of losers in Congress. I often scratch my head and wonder how Reid, Pelosi, McConnell and Boehner manage to stay in office as long as they have.
Fails to escape responsibility; there's no "maybe" about it; you morons did it.
America is the first communist nation with 400 million privately owned guns.
Not will be. Is NOW.
"Patriots" get excited over rescuing a few cattle in Nevada while the entire nation slides into communism.
They'll get around to that revolution some day? No rush? Got plenty of time?
No they won't. They've run out of time. The window of opportunity is closed now, as this court ruling proves. Any "rabble-rousers" will be thrown in jail and the key thrown away. Won't take many, just round up a few, the rest will back down and behave.
USA is just like North Korea now. Worse than China, worse than Stalin, worse than Hitler.
"Patriots" were asleep at their post, didn't even see it coming.
I do not concur with your thought here. Unemployment and the squeeze on the middle class is putting good men in a position where they feel helpless against the system. TPTB are playing with fire here. A man with nothing to lose is dangerous.
Bullshit.
When are you fake "patriots" gonna stop these ridiculous "some day" threats?
Men with nothing to lose go berserk lashing out at everyone. That's not revolution. It's anarchy.
Revolution requires sane rational people with resources to mount a revolution all acting together on common principle.
People with nothing to lose can't do that because they have no resources left and no common principle to act together on.
TPTB aren't worried in the least. They know you're a bunch of windbag cowards, all bark no bite.
Buying guns doesn't fulfill the 2nd amendment. Using them does, and that'll never happen, the guts aren't there.
If you idiots have to wait till you've lost everything to churn up the guts, you've lost already.
If you feel helpless against the system now, you'll damn sure be helpless against it when you've lost everything and have nothing left to lose.
Of course it's bullshit. bloviating just makes the little idiots feel better.
How Kafka-esque. Reminds me of Franz's story "The Trial ."
Think of Kafka;s "Metamorphosis" in terms of what has happened to this country in the last 20 years. Milestones
Your enemies are those judges.. they need to be killed and killed immediately.
Its time for targeted assassinations in the US against the traitors.
I hope to see a dramatic pick up in sales of long range sniper rifles and a lot of activity at the ranges with them.
Do an immediate retraction or you will be moving way high on someone's list or receiving a courtesy visit from a local FBI agent-or worse. If you live outside the USA you may be okay - but you are exposing your neighbors to a visit from a US drone.
Oh boy are you in trouble. You can't say things like that, you know.
I don't know why people would bother to purchase weapons that are heavy, bulky and require expensive ammunition, when it is possible to buy a handheld 5 watt (yes, 5000 mw) green laser for under $1k, that can permanently blind targets over a mile away. Mount one of these on a quadrocopter or some other sort of fixed / mobile / flying platform of your choice, along with a remote control and camera system and you have yourself one doozy of a homebrew drone weapon. This is all available today on the internet, just mix, match and assemble.
Imagine a small flying platform, over a mile away, permanently blinding a whole room full of targets in an instant? Imagine the misery they will experience for every remaining moment of their wretched lives? Imagine the raw fear that would generate among their peers?
Not that I'm advocating this, in fact I strongly condemn it, but the TPTB are seriously playing with real fire here if they think things won't go seriously asymmetrical damn fast should all hell start to break out. Consider that this is just one idea from one guy with a technical bent. How many millions out there have knowledge about all kinds of various techniques and technologies that could be misapplied to wreak havoc?
Don't think that you (and others) won't receive the same treatment.
Not everyone is interested in tearing this country asunder.
It is already torn. And the problem is that every expression of federal governmental power is now outside the protection of law. Those exercising that power are outlaws with all that implies about the legality of violent self help.
Still think an Article V convention of the States to consider amendments to the Constituion is a greater risk to liberty than just allowing government to continue on its present trajectory? Think again.
How about enforcing the Consitution we already have; instead of putting more shit on paper that the same madmen will ignore.
We are well past the point where that is even possible. The current populace does not have the intelligence, knowledge or most importantly, virtue, to enforce our current Constitution. The system is rotten to the very core.
not only would it attempt to counter act federal corruption, just as important, it would measure just how corrupt the states have become as well. Good point.
It is saddening to see how Chris Hedges does this most important issue a disservice, by trying to press it into a "capitalism's fault" mold.
The only way to stop excesses is the uniform judicial application of the rule of law.
And capitalism has a vested interest in the rule of law as well, at least for the longer term. (And overbearing short-term thinking is not limited to nor originates from capitalism.)
I'm all for uniform application of the law, but since when have we seen that in the U.S. Otherwise, I think you miss Mr. Hedge's point in bringing the suit, and bless him for standing up & doing so.
The concentration of corporate power as the platform for political dominance makes a lot more sense than "a few bad apples" as a critique of how we got here. It's not capitalism per se, but unchecked corporate power is/was the platform for massive wealth accumulation to bend laws to their bidding. The excellent series Deadwood, though a fictionalized account of real events, did an excellent job of showing how the corporate power of Hearst came to the Black Hills gold strike and took control from the smaller, major players in that community. Swearingen realizes that just, say, shooting Hearst was not going to stop that corporate juggernaut from taking over.
I absolutely believe in the efficiency and freedom inherent in market economies, but when money is the only measure of success then its board is going to attract the sociopaths who will ruthlessly pursue that objective at the detriment of all others. If corporate "personhood" is not a tell then I don't know what is.
Edit: Check out this interview with philosopher John McMurtry where he compares to a cancer what happens (is happening) when the only organizing principle is creating power/money sequences whose only goal (which is seen as the ultimate 'good') is to aggregate all the wealth to the top of the pyramid. http://noliesradio.org/archives/81589
As a fan of the Deadwood series... I totally got the corporate power point in the show.
My father was a Publisher for Hearst so I know first hand how things were done under the table.